Gujarat High Court
Tausifalam Taslimalam Tirmizi vs State Of Gujarat on 8 December, 2015
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/19703/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 19703 of 2015
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TAUSIFALAM TASLIMALAM TIRMIZI....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR ND NANAVATY, LEARNED SENIOR COUNSEL ASSISTED BY MR YASH
N NANAVATY, ADVOCATE for the Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 08/12/2015
ORAL ORDER
1. By way of present application, the applicant- original accused, who is facing charges for the offences punishable under Sections 363, 366, 376(1), 376(d), 342 and 114 of the Indian Penal Code, 1860 read with Sections 3, 4, 5(g), 16, 17 of the Protection of Children from Sexual Offences Act read with Section 3(2)(5) of the Prevention of Atrocities Act registered vide C.R.No.I-130 of 2015 with Maninagar Police Station, Ahmedabad City, has prayed to release him on regular bail during the pendency of the trial.
2. Pursuant to notice issued by this Court, Mr.Mitesh Amin, learned Public Prosecutor has appeared and assisted the Court by producing papers of investigation since the charge-sheet is filed.
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3. The brief facts of these cases are that one Hansaben Nareshbhai Solanki, mother of the prosecutrix lodged an F.I.R. on 27.07.2015 with Maninagar Police Station of Ahmedabad City under Sections 363 and 366 of the IPC against unknown person alleging that her elder daughter- Poonam @ Pooja aged about 17 years and 8 months was missing.
3.1 Subsequent to lodgment of the FIR, the daughter of complainant was traced by family friend namely; Jitesh and she was found on 28.07.2015 and was brought to the Maninagar Police Station. Her statements were recorded and thereafter, the investigating agency carried out investigation and filed charge-sheet before the competent Court. Subsequent to filing of the charge-sheet, the present applicant preferred application being Criminal Misc. Application No.3716 of 2015 before the Special Judge (POSCO), Court No.4, Ahmedabad City and the same was dismissed by the learned Judge vide order dated 05.10.2015. Hence, the present application.
4. Mr.N.D.Nanavaty, learned Senior Counsel appearing for the applicant, by taking me through different statements of prosecutrix, would submit that the prosecutrix has time and again changed her version and, therefore, she is not a reliable girl. He would submit that the prosecutrix, who was not ready and willing to return at home, remained one night in some commercial complex and thereafter remained another night in company with accused person at silver spring hotel wherein the offence alleged to have taken place. He Page 2 of 7 HC-NIC Page 2 of 7 Created On Sat Dec 12 00:52:34 IST 2015 R/CR.MA/19703/2015 ORDER would further submit that initially the name of the applicant was not given by her, however, in her subsequent statement dated 29.07.2015, she has stated that other accused have committed rape at Silver Spring Hotel. She has categorically stated that the present applicant had only visited the said hotel in Room No.102 and there are no allegations of committing rape against the applicant. He would submit that the prosecutrix has subsequently alleged that the applicant had also committed rape, which creates doubts about the credibility of the girl who is almost 18 years of age. Therefore, the bail prayer of the present applicant made in the application may be allowed.
5. On the other hand, Mr.Mitesh Amin, learned Public Prosecutor has vehemently opposed the application and submitted that it is not in dispute that the age of the prosecutrix is below 18 years. He would submit that the incident of gang rape has taken place at the Silver Spring Hotel. Sufficient material including CCTV video footage has been collected by the Investigating Officer, wherein the present applicant has been found entering into the room No.102 where the alleged incident of rape has taken place. He would further submit that the prosecutrix is below the age of 18 years and since she was subjected to gang rape by number of accused, she would not have been in a position to explain the incident in detail at initial stage. He would further submit that the present applicant has been identified by the prosecutrix when the test identification parade was held by the Executing Magistrate. He would further submit that the statement under Section 164 of the Code of Criminal Procedure has been recorded wherein she was categorically Page 3 of 7 HC-NIC Page 3 of 7 Created On Sat Dec 12 00:52:34 IST 2015 R/CR.MA/19703/2015 ORDER stated that the applicant has also committed rape on her in the Room No.102 of Silver Spring Hotel. He would further submit that the allegations of rape against the present applicant have been made from the beginning and the name of the applicant is also referred in the statement of the prosecutrix recorded under Section 164 of the Code of Criminal Procedure and, therefore, the prayer made by the learned advocate appearing for the applicant in the application may be rejected.
6. I have heard the learned advocates appearing for the respective parties. It is not in dispute that the prosecutrix, who has been gang raped by several accused, is below the age of 18 years. Even if it is accepted that she was a consenting party, the same would not help in the provisions made under Section 375 of the Indian Penal Code which defines the rape. The same reads as under:
"375. Rape.-A man is said to commit "rape" if he-
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, Page 4 of 7 HC-NIC Page 4 of 7 Created On Sat Dec 12 00:52:34 IST 2015 R/CR.MA/19703/2015 ORDER anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-
First.-Against her will.
Secondly.- Without her consent.
Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
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Sixthly.- With or without her consent, when she is under eighteen years of age.
Seventhly.- When she is unable to communicate consent.
Explanation 1.-For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.-Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.-A medical procedure or intervention shall not constitute rape.
Exception 2.-Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
7. The case would certainly fall under first, second, third and most importantly in the sixth circumstances which are referred hereinabove. She has categorically stated that against her will six accused have committed rape. Even if it is presumed that she has given consent, the applicant would not Page 6 of 7 HC-NIC Page 6 of 7 Created On Sat Dec 12 00:52:34 IST 2015 R/CR.MA/19703/2015 ORDER entitle for any relief in view of the sixth circumstances which is defined under Section 375 of the Indian Penal Code.
8. As far as version of the prosecutrix is concerned, I am of the opinion that the girl has not attained the age of majority. I have considered the fact that she has given history before the Medical Officer where she was examined about the commission of rape. I have also considered the fact that CCTV video footage establishes the presence of the applicant- accused in Room No.102. It is pertinent to note that the bed- sheet where the offences are taken place have found semen stains. The clothes of the prosecutrix also found semen stains. It is also pertinent to note that the prosecutrix in her statement dated 15.09.2015 recorded under Section 164 of the Code of Criminal Procedure has categorically alleged that the present applicant has also committed rape. As advised by the Hon'ble Apex Court, I am not examined the case in detail, however, prima facie, it is the case of gang rape committed on a minor girl and hence, the present application is meritless and the same is dismissed. Rule is discharged.
(A.J.DESAI, J.) Ashish Tripathi Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat Dec 12 00:52:34 IST 2015